After
finding the existence of special circumstances in terms of section 114(2)(e) of
the Criminal Law (Codification and Reform) Act [Chapter 9:23], the learned
Senior Magistrate sentenced the accused to thirty-six months wholly suspended
for five years on conditions of future good behaviour.
The
learned magistrate considered the fact that the accused was wobbly on his legs,
and partially blind, cumulatively as constituting special circumstances.
What
the learned magistrate overlooked is that the accused's wonky legs did not
prevent him from slaughtering a cow and skinning it. He had the strength of a
normal person to do so. This handicap was, by no means, a serious one. The
alleged handicap of sight is equally blown out of proportion. The accused was
able to slaughter the cow under the cover of darkness. He skinned it in the
dark, and managed to convey it, and sell it in Bulawayo, in the early morning.
The accused's skullduggery cannot be attributed to these handicaps. It was not
his partial handicaps which caused him to steal the cow.
At
most, these factors constitute mitigatory factors.
The
accused had the said above-mentioned handicaps all along as he grew up, and are
not in any way connected to the offence.
This
is one of those rare cases where this court is entitled to confirm the
conviction entered by the trial magistrate but send the case back for sentence
to be passed afresh, after a proper enquiry is carried out on the question of
special circumstances – Criminal Procedure in Zimbabwe by J.R.ROWLAND...,.
Accordingly, the conviction entered by the trial
magistrate..., is hereby confirmed, but, the sentence is set aside, and the
matter is referred to the trial magistrate for a fresh sentence in accordance
with the law.
